1. It was not necessary to the maintenance of the plaintiff’s action, that the false representations should have been made in writing. They were in effect merely representations as to the defendant’s ownership of a piece of property which he was selling.

2. The rule of damages for which the defendant contends cannot be sustained, and that which was adopted at the trial was too favorable to him. If he sold a note which had been paid, knowingly making the false representation that it was still due and unpaid, the jury ought not to make an estimate of the market value of the note. The fact that the maker has paid it in full is conclusive evidence that he could pay it. To assess any less sum than the full amount of the note would be to allow the defendant to retain a part of it as the profit upon his own fraud and falsehood.

3. But upon the question of the sufficiency of the evidence *512to support the plaintiff’s case, we think that an error occurred at the trial, which will require the verdict to be set aside and a new trial granted. The declaration is not upon a warranty, nor in contract upon a failure of consideration; but is in tort, for a deceit in making a false representation, with a knowledge that it was false. The scienter is alleged, and is of the gist of the action. Upon this issue between the parties, the former judgment certainly cannot be conclusive. In the action in which that judgment was recovered, the fact of payment, and not the knowledge of the defendant, was the fact to be determined. The note might have been paid to an agent of the defendant, or in some other way which would be legally binding upon him, and yet he might have had no personal knowledge of the payment. The ruling of the presiding judge, therefore, was erroneous in disregarding the scienter, and leaving the case to the jury as if the question whether the note had in fact been paid were the whole question at issue.

Exceptions sustained.